Facts: Joey was convicted after trial of two counts of
abusive sexual contact, in violation of 18 U.S.C. § 2244(a)(5), and two counts
of committing a felony with a minor while required to register as a sex
offender, under 18 U.S.C. § 2260A. Id.
at *1.

At sentencing, the district court used USSG §
4B1.5 for the § 2244(a) counts – even though Joey had been convicted under §
2260A, which (the defense) contended punishes the same conduct. Id.

When simplified, this complicated calculation
worked as follows: for the two § 2244(a) counts, the sentence was increased to
offense level 37 under § 4B1.5 because Joey had been previously convicted of a
covered sex crime. Id. at *2. For the
§ 2260A counts, the court tacked on a decade apiece – required by statute –
because the substantive crimes happened while Joey was required to register as
a sex offender. Id. at *3.

The final sentence imposed was a pair of
life sentences (imposed concurrently), plus
a pair of concurrent ten-year sentences running after – well, running after the
life terms. Id. at *3.

Joey timely objected to the guideline
calculation. Id. at *3.

Issue(s): “[A]ccording to Joey, the district court
violated the principle against double counting in applying the Guidelines.” Id. at *1.

“According to Joey, the district
court made a procedural error in applying § 4B1.5 for two reasons: (1) § 2A3.6,
and in particular Application Note 3 of that provision, precludes the application
of § 4B1.5, and (2) applying § 4B1.5 in determining Joey's sentence under §
2244(a) (5) when he was also being sentenced under § 2260A violated the
principle against double counting under the Guidelines.” Id. at *3.

Held: “Because we
cannot infer that the Sentencing Commission intended to preclude a § 4B1.5
determination for a § 2244(a)(5) offense when the defendant has also been
convicted under § 2260A, we conclude that the district court did not commit a
procedural error in calculating the Guidelines sentencing range, and we affirm.”
Id. at *1 (fn. omitted).

Of Note: We know of the double-counting bar from the (good) gun
rule: Probation can’t twice-hit our clients with the “used . . . in connection
with another felony offense” + 4 OL specific offense adjustment in the firearm guideline,
and with the mand-mins required by § 924(c).
In fact, Judge Ikuta discusses that very example in Joey. Id. at *4.

Unfortunately, Judge Ikuta also describes
what is effectively an inverse rule of lenity: guideline double-counting is o.k,
unless expressly prohibited by the Commission.
Id. That familiar double-counting ban
for gun cases happens to be one of those expressly-barred examples. Id.

Here, by contrast, Judge Ikuta
concludes that the Commission intended to allow cumulative punishment –
particularly because § 4B1.5’s increase is tied to a prior
sex crime conviction, while § 2260A is tied to a new sex offense while a sex
registrant. “Distinct penological goals,” assures the Court. (Though if you’re familiar
with guideline sausage-making, this quirk looks suspiciously like a tragic Commission
oversight.)

How to Use:
It ain’t double counting, assures the Court. But it will feel that way to Joey,
who will serve a life sentence (twice!) for the bump for the sex crime, plus a brace
of decades for the registration offense. This is a dangerous case: a sex
offender with a prior is almost inevitably a sex registrant, so the impact of Joey is a de facto (and dramatic)
increase in our clients’ sentencing ranges. If a § 2260A offense is alleged,
slog through Joey’s guideline calcs:
the client’s exposure is likely higher than you think.

For Further
Reading: Last week we asked “whither the Ninth,
with four new Trump appointees?” This week we ask, “wither the Ninth with a
Republican Congress?”

Asunder, perhaps.

For a troubling article on the resuscitation of
efforts to split the Ninth Circuit, see, GOP
Eyes New Push to Break Up California Court, available here.

Image of “Double
Count” from https://3.bp.blogspot.com/-9PnNSvZcshU/WEdUOag1zSI/AAAAAAAAHsc/mgbI9lunELsPqEFhfWtZ0_rYey8ObtCBACLcB/s320/54472_double_count_wharton01f.png